Frequently Asked Questions About Cerebral Palsy
US, Canada and Puerto Rico
What is cerebral palsy?
What is medical malpractice?
What is negligence in a medical malpractice setting and can it cause cerebral palsy or birth injuries?
How does our firm determine whether to file a medical malpractice lawsuit in cases of cerebral palsy or birth injuries?
How do you select and find experts?
What is causation?
What damages does the law allow in medical malpractice cases?
What are economic damages?
What are noneconomic damages?
What are punitive damages, and can they be recovered in medical malpractice cases?
Explain what you will do if I consult with you, and how much it will cost.
What considerations are taken into account in determining whether you will file a case?
What is the possibility of a quick settlement if my doctor made a terrible mistake?
How do I know that you will do a good job on my case?
What are your fees?
Q. What is cerebral palsy?
A. Cerebral palsy is a motor function disorder caused by a permanent, nonprogressive brain defect or lesion present at birth or shortly thereafter. The neurologic deficit may result in spastic hemiplegia, monoplegia, or quadriplegia, ataxia, seizures, paresthesia, varying degrees of mental retardation, and impaired speech, vision, and hearing. The disorder is usually associated with premature or abnormal birth and intrapartum asphyxia, causing damage to the nervous system. Walking is usually delayed, and, when attempted, the child manifests a typical scissors gait. The arms may be affected only slightly, but the fingers are often spastic. Deep-tendon reflexes are often exaggerated, and there may be slurred speech, delay in acquiring sphincter control, and athetotic movements of the face and hands. Treatment is individualized and may include the use of braces, surgical correction of deformities, speech therapy, and various muscle relaxants and anticonvulsants.
Q. What is medical malpractice?
A. When injury occurs as a result of negligence by a health care provider, a medical malpractice case may be possible. “Health care providers” includes both people and institutions. In addition to medical doctors and osteopaths, the term includes podiatrists, optometrists, nurses, dentists, psychologists, physical therapists, and others with a license to practice within their particular state. Medical care facilities like hospitals or nursing homes licensed by the state are also health care providers.
Q. What is negligence in a medical malpractice setting and can it cause cerebral palsy or birth injuries?
A. In every labor, the fetus is stressed to some degree. The term “fetal stress” has come into vogue to describe this phenomenon. It may be applied, for example, whether the stress is that which occurs with normal contractions or that which comes from some compression of the umbilical cord. When, however, the fetus is not adequately handling a given stress, such loss of fetal well-being is said to be distress. A goal which must be constantly pursued during labor is preservation of fetal well-being by early detection and relief of fetal distress. Timely diagnosis of fetal distress allows the distress to be remedied either by treating the underlying cause or by prompt delivery of the fetus. The failure to timely diagnose and/or treat fetal distress can cause cerebral palsy or other birth injuries.
In a malpractice case, the jury is instructed that negligence means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant’s profession. This must be proven through testimony of expert witnesses who establish the applicable “standards of care” and explain how the health care provider deviated from those standards. For example, physicians have a duty to take an adequate medical history, to do a proper examination and order necessary laboratory studies, to properly interpret and advise about test results, to engage in thoughtful differential diagnosis of signs and symptoms, to disclose significant risks and obtain informed consent from patients, to give treatment only for proper medical reasons, to prescribe correct medications and provide proper follow-up, to obtain appropriate consultations, and to provide patients with current therapy and treatment options, etc.
Q. How does our firm determine whether to file a medical malpractice lawsuit in cases of cerebral palsy or birth injuries?
A. First, we must determine if we can meet our burden of proving three things:
- that the health care provider was negligent
- that there are substantial damages
- causation, meaning that the specific negligence caused the substantial damages.
Then, we must also conclude that the case is financially feasible. That is, the time, expense and risk the case will require must be weighed against the likely financial recovery if the case is successful.
Q. How do you select and find experts?
A. “Experts” in court, are people who are specially qualified by experience or training and possess knowledge on matters not commonly understood by the general public. The law permits such persons to give their opinions in malpractice cases. In medical malpractice cases, there are often numerous experts needed on a variety of issues, including negligence, the nature and extent of the damages, and the causal link between the negligence and the damages. Our firm brings the highest possible caliber of expert witnesses to each case.
Q. What is causation?
A. “Causation” is an important legal principle which means the injured party has the burden of proving a direct connection between the negligent act of the health care provider and the injuries and damages claimed. Many malpractice cases are defended on the ground that there is no causal relationship between the claimed damages and the alleged negligence. Consider, for example, a case claiming negligent failure to diagnose lung cancer resulting in a delay of a year or more in treatment, where the patient eventually died. The defense will be that there was no causal relationship between the year’s delay and the death. The physician’s defense could be that the original cancer was not treatable in the first place, so the delay in starting treatment, while negligent, was of no causal consequence. The important point is that the plaintiff in a medical malpractice case has a specific burden of proof of causation, i.e., that the alleged damages were “probably”" caused or contributed to by the alleged negligence.
Q. What damages does the law allow in medical malpractice cases?
A. Generally, the plaintiff is to be reasonably compensated for all injuries and losses resulting from the occurrence in question. Damages are split into two general categories: economic (past and future), and non-economic (past and future).
Q. What are economic damages?
A. Economic damages include almost anything that can be replaced with money. This category of damages is very broad and will be variable from case to case. Economic damages always include the reasonable expenses of necessary medical care, hospitalization and treatment; loss of income or earning capacity; loss of time; the reasonable value of services provided by family members for free; the cost of hiring others to perform normal household duties; and the loss of the injured person’s services to his or her spouse. These losses are projected into the future on the basis of medical and economist’s testimony regarding continuing disability and the cost of future needs or losses.
Q. What are non-economic damages?
A. Noneconomic damages are those losses which cannot be quantified in a dollar amount. The most prominent examples are pain and suffering, mental anguish, inconvenience, physical impairment or disability, disfigurement, and loss of enjoyment of life. The importance of categorizing damages as economic or noneconomic lies in the fact that noneconomic damages are sometimes limited under some states’ laws.
Q. What are punitive damages, and can they be recovered in medical malpractice cases?
A. Punitive damages are not based upon the severity of injury to the plaintiff, but rather upon the need to punish the defendant and deter others from engaging in like conduct. While negligence by a health care provider will entitle the injured party to compensatory damages, both economic and noneconomic, negligent conduct does not subject the defendant to punitive damages. Before punitive damages may be awarded, the plaintiff must prove that the defendant acted in a “wanton or intentional” way, which includes the “reckless disregard of a known danger” to the plaintiff’s health and safety. This must be proven by clear and convincing evidence. Punitive damages are extremely rare in medical malpractice cases, but available in appropriate circumstances, in some states.
Q. Explain what you will do if I consult with you, and how much it will cost.
A. First of all, we will not charge you for any of the time we spend visiting with you or for the cost of investigating your case. We only earn a fee if we win a recovery for our clients. We start with an interview to determine the facts as you know them, and make a judgment about whether the case is one which falls within our expertise and interest. The ensuing investigation begins with the collection of all pertinent medical records directly from the health care providers. We ask you to sign releases authorizing us to obtain these records. We then review and analyze the records to determine exactly what happened, and then research the medical literature to identify questionable areas of medical practice. If we believe there is a strong probability that medical malpractice occurred, we will submit your records to appropriate experts for review, asking them for their opinions on the issues of negligence, damages and causation. This review can be quite expensive and time-consuming. If, after consultation with experts, we believe that we can satisfy our burden of proof, we recommend that the case be filed.
Q. What considerations are taken into account in determining whether you will file a case?
A. There are legitimate and meritorious cases of medical malpractice which we do not take as a matter of firm policy. We try to balance the probable result of a case, either by settlement or by jury verdict at trial, against the cost of obtaining that result. Medical malpractice cases are extremely time-consuming, and absorb a tremendous amount of our firm’s resources. We handle medical malpractice cases by a “team” approach, usually involving a principal attorney, an associate attorney, a paralegal, and one or more secretaries. In addition to our time and resources, medical malpractice cases have a high out-of-pocket cost for experts, depositions, travel, research, trial exhibits, and many other things. As previously mentioned, in all cases, we must determine if the matter is “economically feasible”. We do not handle cases where the time, resources and expense at risk outweigh the probable result we can obtain on behalf of our clients.
Q. What is the possibility of a quick settlement if my doctor made a terrible mistake?
A. In our collective experience, quick settlements can occur, but almost never in amounts that are realistic or reasonable. If you are willing to deeply discount and compromise your claim, there are health care providers and insurance carriers who will be glad to buy you off very cheaply. If you want a settlement that is fair and reasonable, do not expect that to happen quickly. Health care providers are reluctant to admit mistakes, and almost routinely insist that their insurance companies defend them aggressively. Therefore, we tell our clients not to anticipate a quick settlement, but rather to get on with their lives and be very patient in regard to settlement. Impatience can be extremely costly, considering what is at stake in these cases.
Q. How do I know that you will do a good job on my case?
A. We believe that experience and results count, and we have both. We have a commitment to getting an excellent result in every case we decide to pursue, and our track record and credibility are extremely important to us. Please keep in mind, however, that every case is different and no result is guaranteed. All we can promise is our best effort and the benefit of our experience and resources on each and every case.
Q. What are your fees?
A. Balkin & Eisbrouch handle all cases on what is called a contingency fee. This means that no fees or costs are charged unless we collect money damages for you. We advance all costs for investigators, court reporters, expert witness testimony, accident reconstructionists, filing fees and any other expenses related to your case. All of the consultations with our office are absolutely free. When you receive compensation, meaning we have successfully concluded your case, either by settlement or litigation, our fees are a percentage of the gross settlement. This percentage is agreed upon before we begin work on your case and is generally between 20% and 40%. The percentage depends on the complexity and type of case.
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